EXHIBIT 10.2
UNITED SHIPPING & TECHNOLOGY, INC.
NON-STATUTORY
STOCK OPTION AGREEMENT
1. United Shipping & Technology, Inc., a Utah corporation (the
"Company"), hereby grants to ______________________ (the "Optionee"), an option
(the "Option") to purchase a total of Seventy Five Thousand (75,000) shares of
Common Stock (the "Shares"), at the price determined as provided in this
agreement (the "Agreement"). This Option shall not be awarded pursuant to the
Company's 1995 Stock Option Plan.
2. Nature of the Option. This Option is not intended to qualify as an
Incentive Stock Option as defined in Section 422 of the Code, but is instead a
Non-Statutory Stock Option as defined pursuant to the Plan.
3. Exercise Price. The exercise price for each share of Common Stock is
Four Dollars and Ninety Five Cents ($4.95) representing the fair market value
per share of the Common Stock on the date of grant.
4. Exercise of Option. This Option shall be exercisable during its term
as follows:
(i) Right to Exercise.
(a) This Option shall be exercisable immediately in
full.
(b) This Option may not be exercised for a fraction
of a share.
(c) In the event of Optionee's death or disability,
the exercisability of the Option is governed by Sections 7, 8 and 9 below.
(d) In no event may this Option be exercised after
the date of expiration of the term of this Option as set forth in Section 11
below.
(ii) Method of Exercise. This Option shall be exercisable by
written notice which shall state the election to exercise the Option, the number
of Shares in respect of which the Option is being exercised, and such other
representations and agreements as to the holder's investment intent with respect
to such shares of Common Stock as may be required by the Company. Such written
notice shall be signed by the Optionee and shall be delivered in person or by
certified mail to the Secretary of the Company. The written notice shall be
accompanied by payment of the exercise price. Until certificates for the Shares
are issued to the Optionee, such Optionee shall not have any rights as a
Shareholder of the Company.
No Shares will be issued pursuant to the exercise of an Option unless
such issuance and such exercise shall comply with all relevant provisions of law
and the requirements of any stock exchange upon which the Shares may then be
listed. Assuming such compliance, for income tax purposes the Shares shall be
considered transferred to the Optionee on the date on which the Option is
exercised with respect to such Shares.
5. Optionee's Representations. In the event the Shares purchasable
pursuant to the exercise of this Option have not been registered under the
Securities Act of 1933, as
amended, at the time this Option is exercised, Optionee shall, concurrently with
the exercise of all or any portion of this Option, deliver to the Company his
Investment Representation Statement in the form attached hereto as Exhibit A.
6. Method of Payment. Payment of the exercise price shall be by (i)
cash; (ii) check, bank draft or money order; (iii) if authorized by the Board of
Directors of the Company, by delivery of Common Stock or other securities of the
Company (valued at the fair market value thereof on the date of exercise) or
(iv) by delivery of a combination of cash and Common Stock or other securities.
The Committee may, in order to prevent any possible violation of law, require
the option price to be paid in cash.
7. Restrictions on Exercise. This Option may not be exercised if the
issuance of such Shares upon such exercise or the method of payment of
consideration for such shares would constitute a violation of any applicable
federal or state securities or other law or regulation, including any rule under
Part 207 of Title 12 of the Code of Federal Regulations ("Regulation G") as
promulgated by the Federal Reserve Board. As a condition to the exercise of this
Option, the Company may require Optionee to make any representation and warranty
to the Company as may be required by any applicable law or regulation.
8. Disability of Optionee. In the event of the complete or partial
mental or physical disability of the Optionee such that the Optionee is unable
by himself to make decisions affecting his rights under this Agreement,
including but not limited to the exercise of the Option, the Option may be
exercised (but in no event later than the date of expiration of the term of this
Option as set forth in Section 11 below), by the authorized legal representative
or guardian of the Optionee, and if no such legal representative or guardian has
been appointed, then the Company may petition any Court of competent
jurisdiction to appoint such representative or guardian prior to Company being
required to take any action hereunder.
9. Death of Optionee. In the event of the death of Optionee during the
term of this Option, the Option may be exercised, at any time within three (3)
years following the date of death (but in no event later than the date of
expiration of the term of this Option as set forth in Section 11 below), by
Optionee's estate or by a person who acquired the right to exercise the Option
by bequest or inheritance, but only to the extent Optionee was entitled to
exercise the Option at the date of death.
10. Non-Transferability of Option. This Option may not be transferred
in any manner otherwise than by will or by the laws of descent or distribution
and may be exercised during the lifetime of Optionee only by him. The terms of
this Option shall be binding upon the Optionee and his or her personal
representatives, heirs, successors and assigns.
11. Term of Option. This Option may not be exercised after May 10,
2000, and may be exercised only in accordance with the Plan and the terms of
this Option.
12. Change in Control. In the event of a merger, consolidation,
acquisition of property or stock, or reorganization as a result of which the
Company is not the surviving corporation or upon a sale of substantially all the
property or stock of the Company to another corporation, the Company immediately
prior to any such transaction will cause a new option to be substituted for the
unexercised portion of all outstanding Options
or cause such old Option to be assumed in its entirety, by the surviving or
purchasing corporation, or a parent or subsidiary of such corporation; and such
new or substituted option shall apply to all shares issued in addition to or in
substitution, replacement or modification of the Shares theretofore covered by
such Option.
13. Withholding Taxes. As a condition to the issuance of Shares of
Common Stock of the Company under this Option, the Optionee authorizes the
Company to withhold in accordance with applicable law from any regular cash
compensation payable to him any taxes required to be withheld by the Company
under federal or state law as a result of his exercise of this Option.
DATE OF GRANT: May 10, 2000
UNITED SHIPPING & TECHNOLOGY, INC.
By:
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Title: Chief Executive Officer and President
Optionee:
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Dated: May 10, 2000
Residence Address:
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EXHIBIT A
INVESTMENT REPRESENTATION STATEMENT
PURCHASER: ___________
ISSUER: United Shipping & Technology, Inc.
SECURITY: COMMON STOCK
AMOUNT: 75,000
DATE: May 10, 2000
In connection with the purchase of the Common Stock ("Securities") of UNITED
SHIPPING & TECHNOLOGY, INC. (the "Company"), the undersigned represents to the
Company the following:
(a) I am aware of the Company's business affairs and financial
condition, and have acquired sufficient information about the Company to reach
an informed and knowledgeable decision to acquire the Securities. I am
purchasing these Securities for my own account for investment purposes only and
not with a view to, or for the resale in connection with, any "distribution"
thereof for purposes of the Securities Act of 1933, as amended (the "Securities
Act")
(b) I understand that the Securities have not been registered under
the Securities Act in reliance upon a specific exemption therefrom, which
exemption depends upon, among other things, the bona fide nature of my
investment intent as expressed herein. In this connection, I understand that, in
the view of the Securities and Exchange Commission (the "SEC"), the statutory
basis for such exemption may be unavailable if my representation was predicated
solely upon a present intention to hold these Securities for the minimum capital
gains period specified under tax statutes, for a deferred sale, for or until an
increase or decrease in the market price of the Securities, or for a period of
one year or any other fixed period in the future.
(c) I further understand that the Securities must be held
indefinitely unless subsequently registered under the Securities Act or unless
an exemption from registration is otherwise available. Moreover, I understand
that the Company is under no obligation to register the Securities. In addition,
I understand that the certificate evidencing the Securities will be imprinted
with a legend which prohibits the transfer of the Securities unless they are
registered or such registration is not required in the opinion of counsel for
the Company.
(d) I am familiar with the provisions of Rule 701 and Rule 144, each
promulgated under the Securities Act, which, in substance, permit limited public
resale of "restricted securities" acquired, directly or indirectly, from the
issuer thereof, in a non-public offering subject to the satisfaction of certain
conditions. Rule 701 provides
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that if the issuer qualifies under Rule 701 at the time of issuance of the
Securities, such issuance will be exempt from registration under the Securities
Act. In the event the Company later becomes subject to the reporting
requirements of Section 13 or 15(d) of the Securities Exchange Act of 1934,
ninety (90) days thereafter the securities exempt under Rule 701 may be resold,
subject to the satisfaction of certain of the conditions specified by Rule 144,
including among other things: (1) the sale being made through a broker in an
unsolicited "broker's transaction" or in transactions directly with a market
maker (as said term is defined under the Securities Exchange Act of 1934); and,
in the case of an affiliate, (2) the availability of certain public information
about the Company, and the amount of securities being sold during any three
month period not exceeding the limitations specified in Rule 144(e), if
applicable. Notwithstanding this paragraph (d), I acknowledge and agree to the
restrictions set forth in paragraph (e) hereof. In the event that the Company
does not qualify under Rule 701 at the time of issuance of the Securities, then
the Securities may be resold in certain limited circumstances subject to the
provisions of Rule 144, which requires among other things: (1) the availability
of certain public information about the Company, (2) the resale occurring not
less than two years after the party has purchased, and made full payment for,
within the meaning of Rule 144, the securities to be sold; and, in the case of
an affiliate, or of a non-affiliate who has held the securities less than three
years, (3) the sale being made through a broker in an unsolicited "broker's
transaction" or in transactions directly with a market maker (as said term is
defined under the Securities Exchange Act of 1934) and the amount of securities
being sold during any three month period not exceeding the specified limitations
stated therein, if applicable.
(e) I further understand that in the event all of the applicable
requirements of Rule 144 or Rule 701 are not satisfied, registration under the
Securities Act, compliance with Regulation A, or some other registration
exemption will be required; and that, notwithstanding the fact that Rule 144 and
Rule 701 are not exclusive, the Staff of the SEC has expressed its opinion that
persons proposing to sell private placement securities other than in a
registered offering and otherwise than pursuant to Rule 144 or Rule 701 will
have a substantial burden of proof in establishing that an exemption from
registration is available for such offers or sales, and that such persons and
their respective brokers who participate in such transactions do so at their own
risk.
Signature of Purchaser:
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Date: May 10, 2000
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